US v. Miguel Lopez-Ramirez

Filing 920100615

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4732

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL LOPEZ-RAMIREZ, a/k/a Fernando Miranda, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00062-REP-1)

Argued:

May 12, 2010

Decided:

June 15, 2010

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge

Affirmed by unpublished per curiam opinion.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Stephen David Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Mary E. Maguire, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Miguel Lopez-Ramirez (Miguel) challenges the substantive

reasonableness of the fifty-nine month sentence imposed by the district court following his guilty plea to the charge of

illegally reentering the United States following the commission of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1). affirm. We

I Miguel is a citizen of Mexico. United bodily States injury, in April 2000, was He unlawfully entered the convicted of assault and with

resisting

arrest,

evading

arrest,

related

counts in Tennessee state court in June 2001, and sentenced to a term of imprisonment of eleven months, twenty-nine days, with fifty percent of the sentence suspended. He was arrested by

federal immigration authorities in October 2001 and was removed to Mexico in December 2001. Sometime in March 2002, Miguel illegally reentered the

United States near El Paso, Texas.

On July 5, 2002, he was

convicted of unlawful possession of a weapon and evading arrest in Tennessee state court and sentenced to thirty days in jail. On July 8, 2002, Miguel was arrested by federal immigration On

authorities and the previous removal order was reinstated.

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September 24, 2002, pursuant to the reinstated removal order, Miguel was removed to Mexico. On March 9, 2003, Miguel illegally reentered the United States near by Eagle Pass, Texas. On Border March 11, 2003, he was in

arrested

United

States

Patrol

officers

Brackettville, Texas.

For this reentry, Miguel was convicted on

October 10, 2003 in the United States District Court for the Western District of Texas of illegally reentering the United States following removal, 8 U.S.C. § 1326(a), a felony, and was sentenced to eight months' imprisonment. On November 10, 2003, On November

Miguel's previous order of removal was reinstated.

13, 2003, pursuant to the reinstated removal order, Miguel was removed to Mexico. At some time in December 2003, Miguel illegally reentered the United States near Laredo, Texas. On January 2, 2004,

Miguel was arrested by federal immigration authorities in Eagle Pass, Texas. For this reentry, Miguel was convicted in the

United States District Court for the Western District of Texas of illegally reentering the United States following removal, 8 U.S.C. § 1326(a), and was sentenced to twenty-one months' After

imprisonment, with three years of supervised release. 1
1

Based on the criminal conduct that followed this § 1326(a) conviction, Miguel is facing the revocation of his supervised release.

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completing his sentence of imprisonment, on February 3, 2006, Miguel's previous order of removal was reinstated. 2006, pursuant to the reinstated removal order, On April 28, Miguel was

removed to Mexico. At some time in February 2008, Miguel illegally reentered the United States near Laredo, Texas. was arrested by federal immigration On July 9, 2008, Miguel authorities in Atlanta,

Georgia.

On July 17, 2008, Miguel's previous order of removal On August 2, 2008, pursuant to the reinstated

was reinstated.

removal order, Miguel was removed to Mexico. In December 2008, Miguel illegally reentered the United

States at an unknown location.

On February 11, 2009, Miguel was

found in the Eastern District of Virginia by federal immigration authorities while he was in the custody of the Sheriff's Office of Chesterfield County, Virginia, awaiting trial for DUI. On February 17, 2009, a federal grand jury sitting in the United States District Court for the Eastern District of

Virginia returned a one-count indictment charging Miguel with illegally reentering the United States following the commission of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1). 7, 2009, Miguel pleaded guilty to this offense. In preparation for sentencing, a presentence report was On May

prepared by a United States probation officer.

The probation

officer concluded that Miguel's total offense level was ten and - 4 -

his

criminal

history range of

category

was

five, to

which

resulted

in

a

sentencing

twenty-one

twenty-seven

months'

imprisonment. 2 At the sentencing hearing on July 24, 2009, neither party objected to the PSR. After considering the presentence report,

Miguel's conduct, the factors set forth in 18 U.S.C. § 3553(a), and the advisory Sentencing Guidelines, the district court

determined that a sentence within the advisory sentencing range would not serve the purposes of § 3553(a) and therefore elected to impose an upward variance sentence of fifty-nine months'

imprisonment.

The upward variance sentence was premised on the

following findings: (1) Miguel had "shown a remarkable disregard for the law," under (J.A. the 78); law (2) he had had (3) and been not he given deterred committed any reasonable him from

treatment violating crimes

and

that laws;

federal in

immigration the United

serious

while

States;

(4)

sentencing Miguel

disparity resulting in this case was not unwarranted.

The probation officer arrived at the total offense level of ten as follows: base offense level of eight, U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(a), plus four levels for the commission of the instant offense after a prior felony conviction, USSG § 2L1.2(b)(1)(D), and minus two levels for acceptance of responsibility, USSG § 3E1.1(a). Miguel's criminal history category of five was premised on his twelve criminal history points.

2

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noted

a

timely

appeal,

challenging

the

substantive

reasonableness of his sentence.

II We review a sentence for reasonableness, applying an abuseof-discretion standard. (2007). error," Our initial Gall v. United States, 552 U.S. 38, 51, review is to for "significant (or procedural improperly

including

"failing

calculate

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range." We next "consider Id. the substantive Id. of the

reasonableness

sentence imposed."

At this stage, we "take into account

the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. "If the district

court decides to impose a sentence outside the Guidelines range, it must ensure that its justification supports the degree of the variance." Cir.), cert. United States 129 v. S. Evans, Ct. 526 F.3d 155, 161 (4th and on

denied,

476

(2008)

(citation presumes

internal

quotation

marks

omitted).

This

court

appeal that a sentence within a properly calculated advisory sentencing range is substantively reasonable. - 6 United States v.

Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding permissibility of presumption of reasonableness for a sentence within the advisory sentencing range). There is no challenge to the procedural reasonableness of the sentence, so we may proceed directly to the question of substantive Miguel's reasonableness. month In this case, on the one hand, much

fifty-nine

sentence

is,

percentage-wise,

higher than the high-end of the sentencing range.

On the other

hand, the district court correctly noted that Miguel has not been deterred by short sentences in the past. twice illegally reentered the United In 2008 alone, he and he has

States,

illegally entered the United States six times.

Even after being

twice convicted of illegally reentering the United States and serving States time less for than those two offenses, years Miguel he after has a in returned being series a from a to the United from

released of

imprisonment. immigration range, and

Moreover,

uncharged sentencing immigration court's

violations his is

which

resulted

lower the

criminal less than

history, stellar.

aside

violations,

While

district

sentencing discretion is not unbounded, a sentencing appeal is not an opportunity for the appellate court to substitute its judgment for that of the district court. the district court concluded that Miguel Here, understandably, had demonstrated a

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complete

disregard

for

the

laws

of

this

country,

needed

to

respect the laws of this country, and needed to be deterred from committing future violations. Finally, although the fifty-nine

month sentence is substantial, it does not create an unwarranted disparity with similarly situated defendants and is well below the ten-year statutory maximum established by Congress. In

short, we find no abuse of discretion in the upward variance sentence imposed by the district court. AFFIRMED

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